Unexplained Wealth Orders: An overview of the regime to date
Since their inception in 2018, the NCA’s use of Unexplained Wealth Orders (UWOs) has not been smooth sailing, most notably in the case of NCA v Baker which saw its UWOs successfully challenged and the NCA subjected to strong judicial criticism of its handling of the case. In contrast, the UWO obtained in July 2019 in respect of eight properties owned by Mr Hussain went unchallenged and forced the businessman to provide details of the nature and extent of his interest in the properties and, most crucially, how they were obtained. Mr Hussain’s purported compliance with the requirements of the UWO, although substantial and consisting of a 76 page statement and 127 folders of supporting material, only served to increase the NCA’s suspicion of his alleged involvement in serious crime. The questions raised by Mr Hussain’s response to the UWO gave the NCA the leverage they needed to obtain the settlement; Mr Hussain will have had to balance the financial loss by virtue of an agreement with the NCA at this stage versus the potentially greater loss from subsequent civil proceedings in front of a court as well as the risk of continued scrutiny of his lifestyle and business.
The case of Mr Hussain has given the NCA several firsts; it was the first case in which a UWO was obtained in respect of alleged serious organised crime (the preceding UWOs involved ‘PEPs’ or politically exposed people) and, most significantly, it is the first UWO to result in the actual recovery of the alleged proceeds of crime. The case also saw the successful deployment of both account and property freezing orders in addition to the UWO in order to ensure there was no dissipation of assets.
Whilst it is a clear victory for the NCA, Mr Hussain’s case appears outwardly to have been more straightforward than the others, proving links to serious organised crime in the UK is likely to be far easier than investigating public figures in other countries with complicated off shore trust structures, questions of beneficial ownership and assets held overseas. With the success of Mr Hussain’s case under its belt, the NCA will now have newly available resources to focus on its other investigations.
For more information on UWOs please see our webpage and blogs. At Kingsley Napley, our team of asset forfeiture and proceeds of crime lawyers have extensive experience of challenging these orders and of engaging effectively with law enforcement and the courts to maximise the chances of a positive outcome.
Ed Smyth is a Partner in the Criminal Litigation Department and represents individuals and corporates involved across the full spectrum of criminal and quasi-criminal matters. He has considerable experience of confiscation and asset forfeiture proceedings and of challenging the exercise of search and seizure powers. He has acted in cases involving the SFO, the NCA, HMRC, the Information Commissioner, the Electoral Commission and various professional disciplinary bodies.
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